WikiLeaks: ISPs to hand over copyright infringer details under TPP

WikiLeaks: ISPs to hand over copyright infringer details under TPP

The Trans-Pacific Partnership (TPP) will force internet service providers (ISPs) to give up the details of copyright infringers so that rights holders can protect and enforce their copyright through criminal and civil means with few limitations, according to the intellectual property chapter released by WikiLeaks over the weekend.

The TPP, which reached agreement last week after talks had stalled for years over digital rights and other issues, will regulate trade between Australia, the United States, New Zealand, Canada, Singapore, Vietnam, Malaysia, Japan, Mexico, Peru, Brunei, and Chile.

However, with the full text of the agreement yet to be published, citizens of those 12 countries have only had the summaries of varying detail released by the parties to go on -- until WikiLeaks published a leaked copy [PDF] of what it purports to be the intellectual property chapter.

"This is the highly sort-after [sic] secret 'final' agreed version of the TPP chapter on intellectual property rights," the WikiLeaks document says.

"There is still a finishing 'legal scrub' of the document meant to occur, but there are to be no more negotiations between the parties ... The document is dated October 5, the same day it was announced in Atlanta, Georgia, USA, that the 12 nations had managed to reach an accord after five and half years of negotiations."

Unlike a leaked TPP draft in November 2013 that revealed a three-strikes piracy policy would not be included in the trade agreement, and a leak in October 2014 revealing that TPP negotiators had decided ISPs should not have to bear large costs arising out of obligations to prevent the copyright infringement of users, WikiLeaks' version of the chapter spells out no such provisions.

Section G of the leaked chapter covers the enabling of rights owners to protect digital copies of their "works, performances, and phonograms", giving authors the exclusive right to mandate the terms of access to their works, while Section H discusses enforcement mechanisms for online copyright infringement.

Under Article H4(2), infringers must pay damages in civil cases to rights holders that are "adequate to compensate for the injury the right holder has suffered because of an infringement of that person's intellectual property right", as well as, under H4(3) "pay the right holder the infringer's profits that are attributable to the infringement".

In regards to calculating damages, Article H4(4) provides that the judiciary in each nation must have consideration of "any legitimate measure of value", including lost profit, the market value of the infringed material, and the RRP.

Each party to the TPP must also pre-establish a framework for calculating damages and additional damages under H7, with the former to be compensatory for the harm suffered by the rights holder, as well as punitive to deter future copyright infringement (H9), and the latter to take into account the nature of the infringement and again the need for deterrence (H10).

Article H11 also states that the court and counsel costs are to be payable by the infringer, with Article H16 mandating that the costs of any technical experts used in court cases must be "reasonable".

According to Article H7, only those copyright infringements that take place at a commercial scale will be deemed a criminal offence, carrying monetary fines and imprisonment sentences.

The damages to be imposed under the Australian system will likely be affected by a recent judicial decision, with the Australian Federal Court in April ordering ISPs iiNet, Dodo, Internode, Adam, Amnet, and Wideband to disclose the customer details associated with 4,726 IP addresses that had allegedly breached the copyright of Dallas Buyers Club (DBC) by downloading infringing copies of the film of the same name.

In August, however, Justice Perram ruled that DBC's draft letters to send to alleged infringers had overreached in its claims for damages, and would need to be rewritten.

The four heads of damages being sought by the rights holder were: The actual cost of legally purchasing the film; the infringer's uploading activity of the film; additional damages for an infringer's other downloading history; and damages covering the cost it took for DBC to obtain that infringer's details.

Only the first and fourth damages claims were allowed by the court, with the other two heads of damages "untenable", and therefore unrecoverable, according to Perram J.

The court case did not cover an amount specifically for the purpose of deterring future infringements, unlike the TPP chapter, however -- only the concrete costs of buying the film and the amount required for DBC to obtain the infringer's details -- so the damages to be charged under a TPP scheme could be higher than the Federal Court-approved system.

Section I of the chapter covers internet service providers (ISPs), with Article I1(1) of the leaked document saying that parties must build a framework providing "legal incentives" for ISPs to assist copyright owners in deterring the transmission and storage of copyrighted material. In addition, each country's laws must ensure that ISPs are not made liable for customers who have used their network to infringe on copyright.

Under Article I3, however, ISPs will be required, upon receiving a notification from the rights holder, "to expeditiously remove or disable access to material residing on their networks or systems upon obtaining actual knowledge of the infringement".

Article I7 also mandates that each party to the TPP must establish a judicial or administrative procedure through which rights owners can obtain the identity of a copyright infringer from an ISP in a timely and efficient manner in order to protect or enforce their copyright.

Article A5 provides that member states will "be free to determine the appropriate method of implementing the provisions of this chapter within its own legal system and practice", however.

Under the Canadian legal framework, its "Notice and Notice Regime" requires ISPs to forward notifications from copyright owners to customers whose IP address has allegedly infringed the copyright in question, with Foreign Affairs, Trade, and Development Canada's summary of the TPP's intellectual property chapter saying that the TPP would "reflect" its intellectual property regime.

Canadian ISPs can also be ordered by court to reveal customer details associated with IP addresses to copyright owners in order for the owner to launch legal proceedings for copyright infringement.

Similarly, Australia's three-strikes policy will soon be implemented for those who are caught downloading copyrighted material. The draft code [PDF] was released by ISPs and rights holders, which were asked to collaborate by Attorney-General George Brandis and Communications Minister cum Prime Minister Malcolm Turnbull in late 2014.

Under the regime, rights holders will send reports to ISPs identifying IP addresses that have allegedly infringed on copyright, with the ISPs to then match IP addresses with account holders and send the associated customers infringement notices. Customers can be warned three times over a 12-month period in escalating education notices, warning notices, and final notices, after which the ISP must make a user's details obtainable through a Federal Court order.

The regime was originally set to be implemented from September 1, but had to be pushed back due to stalling negotiations over the costs imposed by instituting the scheme, and whether the 70 ISPs involved will receive any compensation for being required to enforce copyright on behalf of rights holders.

The Australian government has been fixated on policing piracy, with both houses of parliament passing the piracy site-blocking Bill in mid June. The Copyright Amendment (Online Infringement) Act 2015 will allow rights holders to obtain a court order to block foreign websites that are deemed to contain copyright-infringing material or facilitate user access to copyright-infringement material, such as peer-to-peer torrenting websites including The Pirate Bay.

As well as enforcing rights and punishing those who infringe them, however, the TPP has attempted to balance this out with a non-exhaustive list of limitations and exceptions.

Outlined in Article G17 of WikiLeaks' copy of the TPP, copyright infringement for the following purposes are limited from prosecution: Criticism, comment, news reporting, research, teaching, scholarship, and other similar purposes; as well as providing access for those with visual impairments.

As an additional limitation, non-profit libraries, archives, museums, educational institutions, and public non-commercial broadcasters cannot be targeted by criminal penalties and, provided they did not know their conduct was prohibited, civil penalties, according to Article G10(a).

WikiLeaks' version of the chapter meshes with the outline of the TPP from the US, which identified that the agreement would ensure its member states maintained a framework of safe harbour provisions.

"As a complement to these commitments, the chapter includes an obligation for parties to continuously seek to achieve balance in copyright systems through, among other things, exceptions and limitations for legitimate purposes, including in the digital environment," the Office of the US Trade Representative said in its TPP summary.

"The chapter requires parties to establish or maintain a framework of copyright safe harbors for internet service providers. These obligations do not permit parties to make such safe harbors contingent on ISPs monitoring their systems for infringing activity."

In regards to limitations, the former Labor government in Australia had called for a review of its Copyright Act in 2012 to consider bringing the legislation up to date with the digital world, with the Australian Law Reform Commission (ALRC) arguing that similar to the laws in the US, a "fair use" exception when a person is accused of copyright infringement should be outlined within the revamped law.

Under this provision, the fair use of a copyright material would not constitute infringement, with an incomplete list of fairness factors -- including the purpose of the use, nature of the material, amount of the material used, and the use's effect on the material's value -- to be included in the clause.

Research for the purposes of study, education, news reporting, review, criticism, satire, parody, quotation, non-commercial private use, professional advice, incidental or technical use, library or archive, and access for people with a disability would be limited from prosecution.

The technology sector would in particular benefit from the addition of the non-commercial private use and technical use exemptions, as they would cover data caches, cloud computing, digital recording, and transferring of content.

The cost-benefit analysis concerning the ALRC's recommendations into the Copyright Act is expected to be completed by the end of this year, but should the WikiLeaks TPP chapter mandating that member states implement fair use and safe harbour provisions be accurate, it will likely impact the government's decision and resulting amendments.

To combat online piracy, Article H3(2) states that all TPP members must now collect, analyse, and publish data on copyright infringement, and use this to come up with an effective strategy for preventing and combating future infringements.

This has already been done in Australia to a certain extent: Research released in July by the Department of Communications revealed that only 21 percent of respondents said an education notice would prevent them from consuming copyrighted content for free -- and that users who consume paid content in addition to downloading copyright-infringing content actually spend more than users who consume only non-infringing content.

The Australian Productivity Commission in June also expressed reservations about how tighter international intellectual property and trade regulations could restrict bypasses to technological protection measures, having the effect of encouraging anti-competitive behaviour.

The Trade and Assistance Review 2013-14 report [PDF], which examined recent international trade policy developments and their effect on Australian regulations, flagged how the TPP in particular could further increase stringent intellectual property rights protections once it is signed off.

"The history of IP arrangements being addressed in preferential trade deals is not good," the commission said.

"Indeed, to the extent that the return to IP holders awarded by more stringent IP laws outweighed the benefits to the broader economy, the provision would also impose a net cost on both partners, lowering trading and growth potential across the bloc."

The TPP has yet to be signed and ratified by the 12 Pacific Rim nations that are parties to it.

"TPP negotiating parties are now finalising arrangements for the release of the TPP text, and it will be released well in advance of signature," Australian Minister for Trade Andrew Robb explained. "Each country will then undertake its domestic treaty-making process."

"For Australia, this will involve tabling the treaty text in parliament along with a National Interest Analysis and a review by the Joint Standing Committee on Treaties to which all interested parties can make submissions."